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CASE NO.: Appeal (civil)  2699 of 2001

PETITIONER: Modern School

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH: S.B. Sinha.

JUDGMENT: J U D G M E N T

with C.A. Nos. 2700, 2701, 2702,  2703, 2704, 2705-2706, 2707, 2708,  2709 and 2710 of 2001  

S.B. SINHA, J :

INTRODUCTION:

       How far and to what extent unaided private institutions  can be subjected to regulations is the core question involved  in these appeals which arise out of a common judgment and  order dated 30.10.1998 passed by the High Court of Delhi in  C.W.P. No. 3723, 4021, 4119, 5330 of 1997.

THE LAW OPERATING IN THE FIELD:

       The Delhi School Education Act, 1973 (for short ’the  Act’) was enacted inter alia to provide for better  organisation and development of school education.  By reason  of the provisions of the Act, school education, whether  imparted in a government institution, a minority institution,  an aided or unaided private institutions is sought to be  regulated.  The power of Administrator to regulate education  in all the schools in Delhi, however, is to be made in  accordance with the provisions of the Act.  Section 4 of the  Act provides for recognition of the institution.  A scheme of  management for managing the affairs of the school is required  to be framed in terms of Section 5 thereof conforming to the  provisions of the rules made thereunder.   

       However, in relation to the recognised private school  which does not receive any aid, the scheme of management may  apply with such variations and modifications in the rules as  may be prescribed.  It has not been brought to our notice as  to whether any separate rules have been framed as regard  scheme of management of recognised unaided private schools.   The second proviso appended to Section 5, however, states that  the scheme relating to the previous approval of the  appropriate authority shall not apply to a scheme of  management for unaided minority school.  Section 6 of the Act  provides for grant of aid to recognised schools.  The matter  relating to payment to salary to the employees of the school  is controlled by Section 10 of the Act stating that the scales  of pay and allowances, medical facilities, pension, gratuity,  provident fund and other prescribed benefits of the employees  of a recognised private school shall not be less than the

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amount payable to employees of the corresponding status in  school run by the State.

       Chapter V of the Act applies to unaided minority schools.   Section 15 relates to contract of service in terms whereof a  written contract is required to be entered into by and between  the managing committee and every employee of a school.   Section 17 regulates fees to be charged by aided schools.  No  such provision has been made in relation to the recognised  unaided schools.  Sub-Section (3) of Section 17 merely  requires the manager of every recognised school whether aided  or unaided to file with the Director a full statement of the  fees to be levied by such school during the ensuing academic  session, and, furthermore, except with the prior approval of  the Director, no school shall charge during that academic  session any fee in excess thereof.  The Act, therefore, does  not provide for any regulation as regards charging of any fee  or any other amount by the unaided recognised schools.   

       Section 18 the Act provides for a School Fund.  Sub- sections (1) and (2) of Section 18 relate to aided schools  whereas Sub-section (3) thereof provides for Recognized  Unaided School Fund.; and  such fund may be credited with  income accrued  to the School  by way of fees,  any charges or  payments which may be realized by the School for other  specific purposes or any other contribution, endowment, gift  and the like.  Clause (a) of Sub-section  4 of Section 18  specifies that that the income derived by unaided schools by  way of fees shall be utilized only for such educational  purposes as may be prescribed whereas in terms of Sub-Clause  (b) thereof, charges and contributions received by the school  are required to be utilised for the specific purpose wherefor  they were received.  Any endowment or gift to a Society/trust  for establishment of a new school or establishing any branch  thereof, therefore, is not prohibited.       

       Section 22 provides for establishment of Delhi Schools  Education Advisory Board.  Section 24 provides for inspection  of schools which is in the following terms:

"24. Inspection of schools \026 (1) Every  recognised school shall be inspected at  least once in each financial year in  such manner as may be prescribed.

(2) The Director may also arrange  special inspection of any school on such  aspects of its working as may, from time  to time, be considered necessary by him.

(3) The Director may give directions to  the manager to rectify any defect or  deficiency found at the time of  inspection or otherwise in the working  of the school.

(4) If the manager fails to comply with  any direction given under sub-section  (3) the Director may, after considering  the explanation or report, if any, given  or made by the manager, take such action  as he may think fit, including \026  

(a)     stoppage of aid, (b)     withdrawal of recognition, or

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(c)     except in the case of a minority  school, taking over of the  school under section 20."

       The Administrator in exercise of its power conferred upon  it under Section 28 of the Act framed rules known as the Delhi  School Education Rules, 1973 (The Rules).  Rule 44 mandates  that every society or trust desiring to establish a new school  (not being a minority school) shall give an intimation  therefor in writing communicating their intention to establish  the school.  Rule 50 provides for the conditions for  recognition.  Rule 51 enumerates the facilities to be provided  by a school seeking recognition.  Rule 59 provides for the  scheme of management of recognised schools.  Chapter VI of the  Rules provide for grant-in-aid and conditions therefor.   Chapter VIII provides for recruitment and terms and conditions  of service of the employees of private schools other than  unaided minority ones.  Chapter XIII of the Rules specifies  the mode and manner in which fees and other charges in aided  schools should be expended.  Rule 151 provides for development  fees.   

       The expression ’Fees’ has been defined in Rule 157.   Chapter XIV provides for establishment of a school fund.   Rules 172 to 177 provide for the manner in which the fees  realised by the aided and unaided institutions are to be  utilised.  

       Rules 176 and 177 of the Rules read thus :

"176.  Collections for specific purposes  to be spent for that purpose \026

Income derived from collections for  specific purposes shall be spent only for  such purpose.

177.    Fees realized  by unaided recognized  schools how to be utilized -                             

(1)     Income derived by an unaided  recognized school by way of fees  shall be utilised in the first  instance, for meeting the pay,  allowances and other benefits  admissible to the employees of the  school.

Provided that savings, if any, from  the fees collected by such school may  be utilised by its managing committee  for meeting capital or contingent  expenditure of the school, or for one  or more of the following purposes,  namely :-    

a)      award of scholarships to  students; b)      establishment of any other  recognised school, or  c)      assisting any other school or  educational institution, not  being a college, under the  management of the same society  or trust by which the first

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mentioned school is run. (2)     the savings referred to in sub-rule  (1) shall be arrived at after  providing for the following, namely  :- (a)     pension, gratuity and other  specified retirement and other  benefits admissible to the  employees of the school; (b)     the needed expansion of the  school or any expenditure of a  development nature; (c)     the expansion of the school  building or for the expansion or  construction of any building or  establishment of hostel or  expansion of hostel  accommodation; (d)     co-curricular activities of the  students; (e)     reasonable reserve fund not  being less than ten per cent, of  such savings; (3)     Funds collected for specific  purposes, like sports, co-curricular  activities, subscriptions for  excursions or subscriptions for  magazines, and annual charges, by  whatever name called, shall be spent  solely for the exclusive benefit of  the students of the concerned school  and shall not be included in the  savings referred to in sub-rule (2). (4)     The collections referred to in sub- rule (3) shall be administered in the  same manner as the monies standing to  the credit of the Pupils Fund as  administered."

       Rule 180 mandates that the unaided schools shall submit  returns. ANALYSIS:

       The said Act and the rules framed thereunder provide for  a complete code not only as regard regulation of education but  also organisation and development thereof.                  Establishment of a private educational institutional has  been held to be a fundamental right by this Court in T.M.A.  Pai Foundation and Others Vs. State of Karnataka and Others  [(2002) 8 SCC 481].  The fundamental right to establish  educational institution as contained in Article 19(1)(g) of  the Constitution of India would, however, be subject only to  the reasonable restrictions which may be imposed by any law in  terms of Clause (6) thereof.  The Act is a law regulating  education.  The Act seeks to regulate education \026 necessary  corollary whereof would be that education imparted in an  individual institution may also be subjected to regulation.   But any control or regulation over education or educational  institution must be imposed only by a legislative act and not  by any executive instruction. [See Union of India Vs. Naveen  Jindal and Anr., (2004) 2 SCC 510]

       This Court analysing the provisions of Articles 19, 26  and 30 of Constitution of India in T.M.A. Pai Foundation

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(supra) inter alia stated: a)      The majority community as well as linguistic and  religious minorities would have a right under  Articles 19(1)(g) and 26 to establish educational  institutions. In addition, Article 30(1), in no  uncertain terms, gives the right to the religious  and linguistic minorities to establish and  administer educational institutions of their choice. b)      The Scheme framed by this Court  in  Unni Krishnan,  J.P. Vs. State of A.P.[ (1993) 1 SCC 645]  is  unconstitutional as thereby restrictions imposed    make it difficult, if not impossible, for the  educational institutions to run efficiently.  The  restrictions thus imposed cannot be said to be  reasonable ones.  c)      The private unaided educational institutions  imparting education cannot be deprived of their  choice in matters, inter alia, of selection of  students and fixation of fees and it is not open to  the court to insist that statutory authorities  should impose any condition for the purpose of grant  of affiliation or recognition which would completely  destroy the institutional autonomy  and the very  objective of establishment of the institution. d)      Education, particularly, higher education must be  perceived in the light of the idea of an academic  degree as a "private good" that benefits the  individual rather than a "public good" for society  which is now widely accepted.  The logic of today’s  economics and an ideology of privatization have  contributed to the resurgence of private higher  education and the establishing of private  institutions where none or very few existed before.  e)      The right to establish and administer broadly  comprises of the following rights :-  (a) to admit students;  (b) to set up a reasonable fee structure;  (c) to constitute a governing body;  (d) to appoint staff (teaching and non-teaching);  and  (e) to take action if there is dereliction of duty  on the part of any employees.  f)      While the private educational institutions in the  matter of setting up a reasonable fee structure may  not resort to profiteering but they may take into  consideration the need to generate funds to be  utilized for the betterment and growth of the  educational institution, the betterment of education  in that institution and to provide facilities  necessary for the benefit of the students.  The  regulatory measures must, in general, be to ensure  the maintenance of proper academic standards,  atmosphere and infrastructure and the prevention of  mal-administration by those in charge of management.   The fixing of a rigid fee structure would be an  unacceptable restriction. The essence of a private  educational institution is the autonomy that the  institution must have in its management and  administration.   g)      There, necessarily, has to be a difference in the  administration of private unaided institutions and  the government aided institutions.  In the latter  case, the Government will have greater say inter  alia in fixing of fees but in the case of private  unaided institutions, maximum autonomy in the day-

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to-day administration  has to be with the private  unaided institutions. Bureaucratic or governmental  interference in the administration of such an  institution will undermine its independence.  h)      While running an educational institution is not a  business, in order to examine the degree of  independence that can be given to a recognized  educational institution, like any private entity  that does not seek aid or assistance from the  Government, and that exists by virtue of the funds  generated by it, including loans or borrowings, it  would be important to note that the essential  ingredients of the management of the private  institution include the recruiting students and  staff, and the quantum of fee that is to be charged. i)      An unaided institution can charge fee from the  students.  One cannot lose sight of the fact that we  live in a competitive world today, where  professional education is in demand.  A large number  of professional and other institutions  have been  started by private parties who do not seek any  governmental aid. In a sense, a prospective student  has various options open to him/her where normally  economic forces have a role to play. The decision on  the fee to be charged must necessarily be left to  the private educational institution that does not  seek or is not dependent upon any funds from the  Government.   The object of setting up an  educational institution is by definition  "charitable", the making of profit  should not be  the object. . There can, however, be a reasonable  revenue surplus, which may be generated by the  educational institution for the purpose of  development of education and expansion of the  institution.     

       The Judgment of this Court in T.M.A. Pai Foundation  (supra) came to be interpreted by a Constitution Bench of this  Court in Islamic Academy of Education & Anr. Vs State of  Karnataka & Ors. [(2003) 6 SCC 697]  wherein  inter alia the  following question was raised for consideration:   "Whether the educational institutions  are entitled  to fix their own fee  structure;"

       Answering the said question, this Court held:

"7. So far as the first question is  concerned, in our view the majority  judgment is very clear.  There can be no  fixing of a rigid fee structure by the  Government.  Each institute must have  the freedom to fix its own fee structure  taking into consideration the need to  generate funds to run the institution  and to provide facilities necessary for  the benefits of the students.  They must  also be able to generate surplus which  must be used for the betterment and  growth of that educational institution.   In paragraph 56 of the judgment it has  been categorically laid down that the  decision on the fees to be charged must  necessarily be left to the private  educational institutions that do not

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seek and which are not dependent upon  any funds from the Government.  Each  institute will be entitled to have its  own fee structure.  The fee structure  for each institute must be fixed keeping  in mind the infrastructure and  facilities available, the investments  made, salaries paid to the teachers and  staff, future plans for expansion and/  or betterment of the institution etc.   Of course there can be no profiteering  and capitation fees cannot be charged.   It thus needs to be emphasized that as  per the majority judgment imparting of  education is essentially charitable in  nature.  Thus the surplus/ profit that  can be generated must be only for the  benefit/ use of that educational  institution.  Profits/ surplus cannot be  diverted for any other use or purpose  and cannot be used for personal gain or  for any other business or  enterprise..."

       The Court, having regard to the fact that the validity of  the statutes/ regulations governing the fixation of fees had  not been considered, directed constitution of a committee  headed by a retired High Court Judge for the said purpose.   One of us while concurring with the said directions stated: "147. On a bare reading of the relevant  paragraphs of the judgment some of which  are referred to hereinbefore, it is  beyond any doubt that in the matter of  determination of the fee structure the  unaided institutions exercise a greater  autonomy.  They, like any other citizens  carrying on an occupation, must be held  to be entitled to a reasonable surplus  for development of education and  expansion of the institution.   Reasonable surplus doctrine can be given  effect to only if the institutions make  profits out of their investments. As  stated in paragraph 56, economic forces  have a role to play.  They, thus,  indisputably have to plan their  investment and expenditure in such a  manner that they may generate some  amount of profit.  What is forbidden is  (a) capitation fee and (b) profiteering.          154.The fee structure, thus, in relation  to each and every college must be  determined separately keeping in view  several factors including, facilities  available, infrastructure made  available, the age of the institution,  investment made, future plan for  expansion and betterment of the  educational standard etc.  The case of  each institution in this behalf is  required to be considered by an  appropriate Committee.  For the said  purpose, even the books of accounts  maintained by the institution may have  to be looked into.  Whatever is

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determined by the Committee by way of a  fee structure having regard to relevant  factors some of which are enumerated  hereinbefore, the management of the  institution would not be entitled to  charge anything more."   

       The principles for fixing fee structure of particular  institutions have, thus, been illustrated in T.M.A. Pai  Foundation (supra) and Islamic Academy of Education (supra)  but it must be borne in mind that those principles were laid  down in absence of any statute operating in the field.  Where,  however, a statute operates in the field, regulation of  education would be governed thereby.  In this case, as the  regulation of education is governed by a Legislative Act, the  court cannot impose any other or further restrictions by  travelling beyond the scope, object and purport thereof.                  The High Court by reason of the impugned judgment  travelled beyond the legislative scheme as regards  administration of a private institution as also fixation of  fee while issuing the impugned directions in the light of the  decision of this Court in Unni Krishnan (supra).  It is not in  dispute that pursuant to or in furtherance of the directions  issued by the High Court a Committee known as Duggal Committee  was constituted.  The said Committee has submitted its report.   Pursuant to the recommendations made by the Committee, a  circular dated 15th December, 1999 has been issued purported  to be in terms of Sub-Section (3) and (4) of Section 24 of the  Act.  The same apparently is beyond the scope and purport of  the Act and the Rules as the directions thereunder can be  issued only for the purpose of rectifying the defect and  deficiencies found at the time of inspection or otherwise in  the working of the school and not pursuant to the  recommendations made by a committee constituted in terms of  the judgment of the High Court.  ’Defects and deficiencies’  within the meaning of the said provisions would mean defects  and deficiencies while applying the provisions of the Act and  the rules framed thereunder only and not the recommendations  of a committee de’hors ’the Act’ and ’the rules’.  The said  directions, therefore, do not have the force of law within the  meaning of Clause (6) of Article 19 of the Constitution of  India.  State indisputably can issue directions which would  only meet the criteria of a ’law’ within the meaning of  Article 13 of the Constitution  of India. (See Naveen Jindal  (supra)

       This Court in T.M.A. Pai Foundation (supra), thus, not  only upheld the right to establish and administer educational  institutions as being guaranteed by Articles 19(1)(g) and 26  subject to the provisions of Articles 19(6) and 26(a) and,  particularly, minorities under Article 30, it emphasised the  requirement of grant of greater autonomy to the private  unaided institutions.  The Court while holding that the scheme  framed in Unni Krishnan (supra) as unconstitutional made an  observation that thereby ’education’ in respect of important  features thereof is sought to be nationalised, viz., right of  a private unaided institution to give admission and to fix  fee.  By reason of such a scheme, as private institutions  became indistinguishable from the government institutions  which would amount to curtailing of all essential features of  the right of administration of a private unaided educational  institution, the same was liable to be struck down being  unfair and unreasonable.  The Court in no uncertain terms held  that the fixing of a rigid fee structure, dictating the

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formation and composition of a governing body, compulsory  nomination of teachers and staff for appointment or nominating  students for admissions would be unacceptable restrictions.   It is true that a declaration was made to the effect by the  Court that since the object of setting up of educational  institution is by definition "charitable" as fee cannot be  charged which would not be required for the purpose of  fulfilling that object.  The Object of an educational  institution although may not be to make profiteering but  generation of a reasonable revenue surplus for the purpose of  development of education and expansion of the institution is  permissible.  In the case of unaided private schools, this  Court held that the maximum autonomy must be with the  management as regards administration, disciplinary powers,  admission of students and the fees to be charged.  This Court  noticed that the examination results at all levels of unaided  private schools despite stringent regulations of the  governmental authorities were far superior to the results of  the government-maintained schools.  The Court held that  curtailment of income of such private schools is impermissible  as it disables those schools from affording the best  facilities because of lack of funds.  It was suggested that if  the lowering of standards from excellence to a level of  mediocrity is to be avoided, the solution lies in the States  not using their scanty resources to prop up institutions that  are able to otherwise maintain themselves out of the fees  charged, but in improving the facilities and infrastructure of  state-run schools and in subsidizing the fees payable by the  students there.

       We are bound by the decisions of the larger Benches of  this Court.

       This Court, having regard to T.M.A. Pai Foundation(supra)  cannot thus issue any direction or make a scheme which would  not be constitutional being violative of clause (6) of Article  19 of the Constitution.  

Indisputably, the standard of education, the curricular  and co-curricular activities available to the students and  various other factors are matters which are relevant for  determining of the fee structure.  The courts of law having no  expertise in the manner and/ or having regard to its own  limitations keeping in view the principles of judicial review  always refrain from laying down precise formulae in such  matters.  Furthermore, while undertaking such exercise the  respective cases of each institution, their plans and  programmes for the future expansion and several other factors  are required to be taken into consideration.  The Constitution  Bench in Islamic Academy of Education (supra) which as noticed  hereinbefore subject to making of an appropriate legislation  directed setting up of two committees, one of which would be  for determining fee structure.  This Court both in T.M.A. Pai  Foundation (supra) and Islamic Academy of Education (supra)  had upheld the rights of the minorities and unaided private  institutions to generate a reasonable surplus for future  development of education.

       Dawn Oliver in Constitutional Reform in the UK under the  heading ’The Courts and Theories of Democracy, Citizenship,  and Good Governance’ at page 105 states:

"However, this concept of democracy as  rights-based with limited governmental  power, and in particular of the role of

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the courts in a democracy, carries high  risks for the judges - and for the public.   Courts may interfere inadvisedly in public  administration.  The case of Bromley  London Borough Council v. Greater London  Council ([1983] 1 AC 768, HL) is a classic  example.  The House of Lords quashed the  GLC cheap fares policy as being based on a  misreading of the statutory provisions,  but were accused of themselves  misunderstanding transport policy in so  doing.  The courts are not experts in  policy and public administration - hence  Jowell’s point that the courts should not  step beyond their institutional capacity  (Jowell,2000).  Acceptance of this  approach is reflected in the judgments of  Laws LJ in International Transport Roth  GmbH Vs. Secretary of State for the Home  Department ([2002] EWCA Civ 158, [2002] 3  WLR 344) and of Lord Nimmo Smith in Adams  v. Lord Advocate (Court of Session, Times,  8 August 2002) in which a distinction was  drawn between areas where the subject  matter lies within the expertise of the  courts (for instance, criminal justice,  including sentencing and detention of  individuals) and those which were more  appropriate for decision by democratically  elected and accountable bodies.  If the  courts step outside the area of their  institutional competence, government may  react by getting Parliament to legislate  to oust the jurisdiction of the courts  altogether.  Such a step would undermine  the rule of law.  Government and public  opinion may come to question the  legitimacy of the judges exercising  judicial review against Ministers and thus  undermine the authority of the courts and  the rule of law."

       The aforementioned paragraph has been noticed by this  Court in Chairman and M.D., BPL Ltd. Vs. S.P. Gururaja & Ors  [(2003) 8 SCC 567].

       The States have a duty to impart education and  particularly primary education having regard to the fact that  the same is a fundamental right within the meaning of Article  21 of the Constitution of India, but as the Government had  neither resources nor the ability to provide for the same, it  appears, the Legislature permitted the Societies/Trusts to  establish the educational institutions from the savings made  by them from the Unaided Institutions.   It is not the case of the respondents that Rule 177 is  unconstitutional.  The vires or otherwise of the said rule may  be considered in an appropriate proceedings but without going  into the said question in great details, it may not be  appropriate for us to read down the provisions thereof and  issue any direction in derogation thereto.  I do not find any  conflict in Rules 176 and 177 of the Rules.             In view of the fact that the plain language has been  employed in Rule 177 of the Rules, a strict construction  thereof may not be justified.  The proviso appended to Rule  177 is not exhaustive.  There is no reason as to why the

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expression "capital or contingent expenditure" of the school  should be given a narrow meaning, particularly having regard  to the fact that Clause (b) thereof permits the Managing  Committee to establish any other recognised school out of the  saving from the fees collected by such school and clause (c)  thereof permits rendition of assistance to any other school or  educational institution under the Management of the same  society or trust by which the first mentioned school is run. The provisions of the Act and the rules framed thereunder  in my opinion are absolutely clear and unambiguous.  This  Court has to interpret the provisions of the Act and the Rules  framed thereunder in the light of the fundamental rights of  the appellants.  Any direction, therefore, which would further  curtail their fundamental rights would be wholly unwarranted.   Furthermore, the impugned judgment of the Delhi High  Court was rendered having regard to the decision of this Court  in Unni Krishnan (supra).  Unni Krishnan (supra) no longer  holds the field.  Its dicta that imparting of education is not  a fundamental right stands overruled.  The scheme framed by it  has also been held to be unconstitutional.  All orders and  directions issued by the High Court pursuant to or in  furtherance of the directions in Unni Krishnan (supra) or any  decision following the same must, therefore, be kept out of  consideration.  Thus, the question posed in these matters needs to be  answered differently as imparting of education is now a  fundamental right.  Such a right, therefore, requires a fresh  look and not through the glasses of Unni Krishnan (supra).   An 11-Judge Bench as also a Constitution Bench of this  Court in T.M.A. Pai Foundation (supra) and Islamic Academy of  Education (supra), as noticed hereinbefore, have merely  forbidden profiteering.   ’Profiteering’ has been defined in Black’s Law  Dictionary, Fifth edition as:  "Taking advantage of unusual or  exceptional circumstances to make  excessive profits"                  Although decisions are galore the purpose would be better  served by referring to G.P. Singh Principles of Statutory  Interpretation, Ninth Edition, 2004, pages 120-122 which is in  the following terms:

"4. Regard to Consequences:

If the language used is capable of  bearing more than one construction, in  selecting the true meaning regard must  be had to the consequences resulting  from adopting the alternative  constructions.  A construction that  results in hardship, serious  inconvenience, injustice, absurdity or  anomaly or which leads to inconsistency  or uncertainty and friction in the  system which the statute purports to  regulate has to be rejected and  preference should be given to that  construction which avoids such results.   This rule has no application when the  words are susceptible to only one  meaning and no alternative construction  is reasonably open.

(a)     Hardship, inconvenience,

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injustice, absurdity and anomaly to  be avoided

In selecting out of different  interpretations "the court will adopt  that which is just, reasonable and  sensible rather than that which is none  of those things" as it may be presumed  "that the Legislature should have used  the word in that interpretation which  least offends our sense of justice".   If the grammatical construction leads to  some absurdity or some repugnance or  inconsistency with the rest of the  instrument, it may be departed from so  as to avoid that absurdity, and  inconsistency.  Similarly, a  construction giving rise to anomalies  should be avoided.  As approved by  Venkatarama Aiyar, J., "Where the  language of a statute, in its ordinary  meaning and grammatical construction,  leads to a manifest contradiction of the  apparent purpose of the enactment, or to  some inconvenience or absurdity,  hardship or injustice, presumably not  intended, a construction may be put upon  it which modifies the meaning of the  words, and even the structure of the  sentence."

It would not, therefore, be proper to impose any further  restrictions in this behalf and interpret T.M.A. Pai  Foundation (supra) in a different way so as to take away some  of the rights of the appellants which are recognised therein. We have noticed hereinbefore that T.M.A. Pai Foundation  (supra) gave a new look to the concept of ’education’, viz.,  opening up of economy and concept of globalisation.  We,  therefore, cannot look at the question differently.  It must  further be borne in mind that by reason of judicial direction  this Court cannot override a statute or statutory rules  governing the field and, thus, no direction can be issued by  this Court contrary thereto or inconsistent therewith.   Furthermore, the expression ’development of education’ is  a broad term.  There does not exist any reason as to why the  said right would be limited, regulated or curtailed in absence  of any provisions contained in the Act or the rules framed  thereunder.  When the law permits utilisation of surplus fund  of an institution for setting up another institution, the  Court should not come in their way from doing so. This Court, when such legislations are operating in the  field should be loathe to impose any further restrictions.   This Court normally does not pass an order even in exercise of  its jurisdiction under Article 142 of the Constitution of  India which would be contrary to the law.  (See Government of  West Bengal Vs. Tarun K. Roy and Ors. 2003 (9) SCALE 671,  paragraphs 32 to 34 and Jamshed Hormusji Wadia Vs. Board of  Trustees, Port of Mumbai and Another, (2004) 3 SCC 214) The need of the day, therefore, is strict implementation  and enforcement of the statute.  The administration, in the  event, comes to the conclusion that the rules are required to  be amended, they are free to do so; but only because there are  a few cases of mismanagement, the same by itself should not be  considered to be an indicia that all institutions are being

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run in an unprofessional or unethical manner.  

Once, the legislature has laid down an educational  scheme, the jurisdiction of the court is merely to interpret  the same.  It cannot and should not issue any other or further  direction.  It would not supplant a statutory provision by  issuing any direction except in some exceptional cases.    

The statutory scheme of the Act must be considered also  from the point of view that a Society running several  institutions may have to impart education in different areas;  slum, semi urban or urban.  It may not, therefore, be improper  for an institution to generate some surplus fund from an  institution which is situated within a metropolitan area for  the purpose of starting a school in a slum or a semi urban  area.   

It may also not be necessary to issue direction as to how  and in what manner the institutions should maintain their  accounts. In absence of any statutory provision governing the  field, it is for the administration  of the educational  institution to determine the same having regard to the  prevailing law like Income Tax Act, 1961.

I am, furthermore of the opinion, that as it is  permissible in law, the excess income from an institution may  be spent by the Society/Trust to establish another school  keeping in view the fact that more and more educational  institutions are required to be established particularly in  rural or semi urban area.  

So far as allotment of land by the Delhi Development  Authority is concerned, suffice it to point out that the same  has no bearing with the enforcement of the provisions of the  Act and the rules framed thereunder but indisputably the  institutions are bound by the terms and conditions of  allotment.  In the event such terms and conditions of  allotment have been violated by the allottees, the appropriate  statutory authorities would be at liberty to take appropriate  step as is permissible in law.   

       For the reasons aforementioned, I respectfully dissent  with the opinion of Brother Kapadia,J.  I would allow the  appeals.  No costs.